James v Dowling
Filing
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OPINION AND ORDER by Judge Claire V Eagan - Respondent's motion to dismiss for failure to exhaust state remedies (Dkt. # 7) is denied. Petitioner's motion for leave to exhaust state remedies (Dkt. # 9) is denied. Within thi rty (30) days of the entry of this order, or by August 30, 2018, petitioner may file a brief as outlined in this opinion and order. ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 8/30/2018); denying 7 Motion to Dismiss; denying 9 Motion for Miscellaneous Relief (Re: 1 PETITION for Writ of Habeas Corpus - 2254 ) (RGG, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
MARVIN ALPHANSO JAMES,
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Petitioner,
v.
JANET DOWLING, Warden
Respondent.
Case No. 17-CV-0668-CVE-FHM
OPINION AND ORDER
This is a 28 U.S.C. § 2254 habeas corpus action. Before the Court are two motions:
respondent’s motion to dismiss the habeas petition for failure to exhaust state remedies (Dkt. # 7),
and petitioner’s motion for leave to exhaust state remedies (Dkt. # 9). For the reasons discussed
below, the Court shall deny both motions.
BACKGROUND
Petitioner challenges the constitutional validity of the judgment and sentence entered against
him in the District Court of Tulsa County, Case No. CF-2014-6469. Dkt. # 1 at 1. In that case, a
jury convicted petitioner of making a lewd or indecent proposal to a child under age 16, in violation
of OKLA. STAT. tit. 21, § 1123, and resisting an officer, in violation of OKLA. STAT. tit. 21, § 268.
Dkt. # 8-1 at 1.1 In accordance with the jury’s recommendations, the trial court imposed a three-year
prison sentence on the first count and no incarceration or fine on the second count. Id.
Petitioner filed a direct appeal with the OCCA, raising five propositions of error:
1
For consistency, the Court’s record citations refer to the CM/ECF header page numbers in
the upper right-hand corner of each document.
Proposition 1: The prosecutor’s questioning regarding other juvenile prostitution
cases in Tulsa amounted to an appeal to societal alarm which violated
relevant provisions of the Oklahoma Evidence Code and prejudiced
[petitioner], undermining his right to a fair trial under the Fourteenth
Amendment to the United States Constitution.
Proposition 2: Defense counsel had not been provided with the background
discovery in support of Sergeant Evans testimony regarding the
reasons for the “sting” operation in this case. The failure to provide
this information prior to jury trial constituted a discovery violation.
Proposition 3: Defense counsel was ineffective in violation of the Sixth and
Fourteenth Amendment to the United States Constitution for failing
to request sentencing entrapment instructions in this case.
Proposition 4: Under the facts of the case before this Court, [petitioner] was
improperly denied credit for time served in the county jail awaiting
jury trial. The judgment and sentence must be modified to reflect that
he be given credit for time served.
Proposition 5: The crime that [petitioner] was convicted of committing is not an
enumerated offense under 21 O.S. 2011, § 13.1. The jury should not
have been instructed that the offense of lewd proposal to a person
believed to be a child under the age of sixteen required [petitioner] to
serve a minimum 85% of his sentence.
Dkt. # 8-2, Pet’r App. Brief, at 2-3.
By unpublished summary opinion, filed December 20, 2016, in Case No. F-2016-3, the
OCCA affirmed the trial court’s judgment and sentence. Dkt. # 8-1, OCCA Op., at 7. Petitioner did
not seek a writ of certiorari from the United States Supreme Court. Dkt. # 1 at 3.
On December 12, 2017, petitioner filed the instant habeas petition, identifying six grounds
for habeas relief:
Ground 1:
The [OCCA] ruled in contrary to clearly established Federal law in
adjudication of Petitioner’s Prosecutorial Misconduct claim for relief
wherein the prosecutor’s questioning regarding other juvenile
prostitution cases in Tulsa amounted to an appeal to societal alarm
which violated relevant provisions of the Oklahoma Evidence Code
(and Federal Rules of Evidence) and prejudiced Petitioner,
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undermining his right to a fair trial under the Fourteenth Amendment
to the United States Constitution.
Ground 2:
The OCCA ruled in contrary to clearly established Federal law in
adjudication of Petitioner’s Brady violation claim wherein Defense
counsel had not been provided with the background discovery in
support of Sergeant Evans testimony regarding the reasons for the
“sting” operation in this case constituting a “discovery violation”
violative of the Sixth and Fourteenth Amendment to the United States
Constitution.
Ground 3:
The OCCA ruled in contrary to clearly established Federal law in
adjudication of Petitioner’s Ineffective Assistance of Counsel claim
wherein Defense counsel was ineffective in violation of the Sixth and
Fourteenth Amendment to the United States Constitution for failing
to request sentencing entrapment instructions.
Ground 4:
The OCCA ruled in contrary to clearly established Federal law in
adjudication of Petitioner’s Eighth Amendment claim wherein
Petitioner was denied credit for time served in the county jail
awaiting jury trial at the same time being denied the opportunity for
bail in violation of Equal Protection of Law guaranteed by the
Fourteenth Amendment to the United States Constitution.
Ground 5:
The OCCA ruled in contrary to clearly established Federal law in
adjudication of Petitioner’s Eighth Amendment claim wherein
Petitioner was not convicted of “Lewd molestation of a child as
defined in Section 1123 of Oklahoma Statutes Title 21” and subject
to serve a minimum of 85% of his sentence.
Ground 6:
Even if none of the previously discussed errors can, when viewed in
isolation, necessitate reversal of Petitioner’s conviction, the
combined effect of these errors deprived Mr. James of a fair trial and
requires the conviction to be reversed pursuant to both the Due
Process of Law and Equal Protection of Law Clauses of the
Fourteenth Amendment to the United States Constitution.
Dkt. # 1 at 3, 5-6, 8, 10, 13-14.
In response to the petition, respondent filed a motion to dismiss for failure to exhaust state
remedies (Dkt. # 7), along with a supporting brief (Dkt. # 8). In response to the motion to dismiss,
petitioner filed a motion for leave to exhaust state remedies (Dkt. # 9), along with a supporting brief
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(Dkt. # 10). Respondent filed an objection to petitioner’s motion (Dkt. # 11). On March 13, 2018,
petitioner notified the Court that he filed an application for state post-conviction relief (Dkt. # 12).2
ANALYSIS
Respondent concedes that petitioner exhausted his Ground 3 claim. Dkt. # 8 at 3 n.1.
However, respondent contends petitioner did not exhaust the remaining claims. Id. at 3. Respondent
therefore urges the Court to dismiss the entire petition for failure to exhaust state remedies. Dkt. ##
7, 8. In light of respondent’s motion to dismiss, petitioner asks this Court to stay the habeas
proceedings and grant him leave to exhaust the remaining claims. Dkt. ## 9, 10.
The Antiterrorism and Effective Death Penalty Act (AEDPA) generally “prohibits federal
courts from granting habeas relief to state prisoners who have not exhausted available state
remedies.”
Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017); see also 28 U.S.C.
§ 2254(b)(1). AEDPA’s exhaustion requirement “is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are presented to the federal
courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To satisfy the exhaustion requirement,
“a federal habeas petitioner [must] provide the state courts with a ‘fair opportunity’ to apply
controlling legal principles to the facts bearing upon his constitutional claim.” Grant v. Royal, 886
F.3d 874, 890 (10th Cir. 2018) (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982)). This means,
inter alia, that the claim raised in the habeas petition “cannot depart significantly from” the claim
raised in state court. Id. at 891.
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Petitioner did not provide a copy of his application for post-conviction relief, but his notice
indicates the application alleges that appellate counsel was ineffective for failing to raise
several claims on direct appeal, including those claims that respondent has identified as
unexhausted. See Dkt. # 12 at 1-3.
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Ordinarily, “a federal court should dismiss unexhausted claims without prejudice so that the
petitioner can pursue available state-court remedies.” Id. at 891-92 (quoting Bland v. Sirmons, 459
F.3d 999, 1012 (10th Cir. 2006)). “However, dismissal without prejudice for failure to exhaust state
remedies is not appropriate if the state court would now find the claims procedurally barred on
independent and adequate state procedural grounds.” Id. at 892 (quoting Smallwood v. Gibson, 191
F.3d 1257, 1267 (10th Cir. 1999)). Rather, those claims that the state court would find procedurally
barred are procedurally defaulted for purposes of habeas review. Id. To overcome the procedural
default, a petitioner must “demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Id. (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
I.
Petitioner exhausted the claims raised in Grounds 1, 3 and 4.
Respondent concedes, and the Court agrees, that petitioner exhausted his Ground 3 claim.
See Dkt. # 8 at 3 n.1; Dkt. 8-1, OCCA Op., at 4-5. The Court finds that petitioner also exhausted
the claims raised in Grounds 1 and 4.
As to Ground 1, respondent acknowledges that petitioner (1) presented a prosecutorial
misconduct claim to the OCCA on direct appeal and (2) alleged that the prosecutor improperly
invoked societal alarm in questioning Sergeant Evans. Dkt. # 8 at 4. But respondent argues
petitioner now “raises a different factual basis to support” his prosecutorial misconduct claim by
referring in his habeas petition to a juror’s note as additional evidence establishing prejudice. Dkt.
# 8 at 4-5. Thus, respondent argues, petitioner failed to exhaust his Ground 1 claim because the
OCCA did not have an opportunity to consider the impact of the juror’s note in determining whether
the alleged prosecutorial misconduct resulted in prejudice. Id.
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Having reviewed petitioner’s direct appeal brief and the OCCA’s decision, the Court finds
that petitioner sufficiently exhausted the Ground 1 claim. Petitioner argues in his petition, as he did
on direct appeal, that the prosecutor improperly invoked societal alarm by questioning Sergeant
Evans about unrelated juvenile prostitution cases. See Dkt. # 1 at 3-5; Dkt. # 8-2, Pet’r App. Brief,
at 11-16. Significantly, in rejecting the prosecutorial misconduct claim, the OCCA applied plainerror review. Dkt. # 8-1, OCCA Op., at 2. The Tenth Circuit Court of Appeals has acknowledged
that “Oklahoma’s plain-error test is rooted in due process.” Thornburg v. Mullin, 422 F.3d 1113,
1124 (10th Cir. 2005). In applying that test here, the OCCA “review[ed] the challenged comments
in the context of the whole trial, considering the arguments of both parties and the strength of the
State’s evidence.” Id. at 2. As a result, the OCCA effectively adjudicated the merits of petitioner’s
federal claim that the alleged prosecutorial misconduct deprived him of his right to a fundamentally
fair trial. See Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (explaining that unless habeas
petitioner alleges prosecutorial misconduct deprived him of a specific constitutional right, proper
inquiry is whether challenged conduct “so infected the trial with unfairness as to make the resulting
conviction a denial of due process,” and that inquiry requires consideration “of the entire
proceedings”). Moreover, in light of the OCCA’s express statement that it considered the record
as a whole in adjudicating petitioner’s prosecutorial misconduct claim, the Court presumes that the
OCCA considered the impact, if any, of the juror’s note in determining whether petitioner was
deprived of his right to a fair trial. As a result, the Court finds petitioner sufficiently exhausted his
Ground 1 claim.
As to Ground 4, respondent argues petitioner failed to give the OCCA an opportunity to
decide whether the denial of credit for time served and the denial of bail violated federal law. Dkt.
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# 8 at 7-8. The Court disagrees. In his direct appeal brief, petitioner argued that the denial of bail
and denial of jail credit violated his rights under state and federal law. See Dkt. # 8-2, Pet’r App.
Brief, at 25-31. He specifically alleged, “it is a violation of the Eighth and Fourteenth Amendment
to set bail to ensure that a defendant will not gain his freedom,” and that setting bail “at a higher
figure than an amount reasonably calculated to fulfill the legitimate purpose of assuring one’s
appearance in court is ‘excessive and in violation of the United States Constitution’.” Dkt. # 8-2,
Pet’r App. Brief, at 30. He further argued that the “[d]enial of credit for time served in pretrial
custody necessitated by financial inability to make bail has been held violative of the Fourteenth
Amendment.” Id. at 31. In rejecting petitioner’s claims, the OCCA primarily applied Brill v.
Gurich, 965 P.2d 404 (Okla. Crim. App. 1998). See Dkt. # 8-1, OCCA Op., at 5. In Brill, the
OCCA acknowledged that the bail provisions of the state constitution were amended in 1988
following the enactment of the federal Bail Reform Act. See id.; Brill, 965 P.2d at 407-09
(identifying several procedural requirements that must be met before a state district court denies bail
to “ensure the application of [Oklahoma’s] state constitutional provisions relating to bail does not
violate federal constitutional rights”). Applying Brill, the OCCA concluded that petitioner was
properly held without bond. Dkt. # 8-1, OCCA Op., at 5-6. The OCCA then stated, “[petitioner]
fails to raise any Eighth Amendment or Fourteenth Amendment claims which are relevant to the
facts of his case. Id. at 6 (emphasis added). In arguing that petitioner failed to exhaust the federal
claims asserted in Ground 4, respondent essentially asks this Court to ignore the italicized portion
of the OCCA’s statement and conclude that the OCCA found petitioner failed to raise any federal
claims. See Dkt. # 8 at 7-8. The Court declines to do so. Instead, the Court reads the OCCA’s
statement, in the context of the specific arguments petitioner asserted in his direct appeal brief, as
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a rejection of petitioner’s federal claims on the merits based on the OCCA’s finding that the
underlying facts did not support his federal claims. Thus, the Court finds petitioner sufficiently
exhausted his Ground 4 claim.
II.
Petitioner failed to exhaust the claims raised in Grounds 2, 5, and 6.
Respondent contends, and the Court agrees, that petitioner did not fully exhaust the
remaining claims. See Dkt. # 8 at 5-6. As to Ground 2, petitioner relied solely on the Oklahoma
Evidence Code to argue on direct appeal that the prosecutor committed a discovery violation. See
Dkt. # 8-2, Pet’r App. Brief, at 16-18. The Court finds nothing in petitioner’s direct appeal brief or
in the OCCA’s opinion suggesting that petitioner fairly presented a claim to the OCCA that the
prosecutor failed to provide discovery as required by Brady v. Maryland, 373 U.S. 83 (1963). See
Dkt. ## 8-1, 8-2. Thus, to the extent petitioner’s Ground 2 claim asserts a Brady claim, the Brady
claim is unexhausted.
Likewise, as to Ground 5, petitioner relied strictly on Oklahoma law to argue on direct appeal
that the jury should not have been instructed that his Count 1 conviction was an 85% crime. See
Dkt. # 8-2, Pet’r App. Brief, at 32-36. In his habeas petition, petitioner alleges a significantly
different claim: that the OCCA’s interpretation of state law as defining his crime of conviction as
an 85% crime violates the Eighth Amendment. Dkt. # 1 at 13. Because petitioner did not fairly
present an Eighth Amendment claim to the OCCA, that portion of his Ground 5 claim is
unexhausted.
Finally, as to Ground 6, petitioner did not ask the OCCA to consider the cumulative effect
of the errors he alleged on direct appeal. See Dkt. # 8-2, Pet’r App. Brief, generally. Thus, he
completely failed to exhaust his Ground 6 claim.
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III.
The Court will apply an anticipatory procedural bar
As just discussed, petitioner exhausted only three of his six claims. Thus, respondent is
correct that petitioner presents a “mixed petition.” See Wood v. McCollum, 833 F.3d 1272, 1273
(10th Cir. 2016). As a result, the Court could grant respondent’s request to dismiss the entire
petition without prejudice and permit petitioner to return to state court to exhaust state remedies as
to the unexhausted claims. See id. ; see also Grant, 886 F.3d at 891-92. Or, as petitioner requests,
the Court could, “if the equities favor such an approach . . . stay the federal habeas petition and hold
it in abeyance while the petitioner returns to state court to exhaust the previously unexhausted
claims.” Wood, 833 F.3d at 1273 (citing Rhines v. Weber, 544 U.S. 269, 279 (2005)).
For two reasons, the Court finds that neither approach is optimal. First, neither dismissing
the entire petition without prejudice nor granting a stay to permit petitioner to exhaust state remedies
would be appropriate because the OCCA would now find petitioner’s unexhausted claims
procedurally barred. See Grant, 886 F.3d at 892. Petitioner failed to exhaust portions of his Ground
2 and Ground 5 claims and all of his Ground 6 claim. But each of these claims could have been
raised on direct appeal. The OCCA routinely applies a procedural bar to claims that could have
been, but were not, raised on direct appeal. See OKLA. STAT. tit. 22, § 1086; Walker v. State, 933
P.2d 327, 330-31 (Okla. Crim. App. 1997) (“[P]ost-conviction claims which could have been raised
in previous appeals but were not are generally considered waived.”). And the Tenth Circuit Court
of Appeals recognizes this particular procedural bar as an independent and adequate state ground
for denying habeas relief. Ellis v. Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002). Moreover,
petitioner appears to recognize that his unexhausted claims are now procedurally barred. In
requesting a stay, petitioner discusses OKLA. STAT. tit. 22, § 1086 and suggests his only “viable
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ground” for post-conviction relief may be ineffective assistance of appellate counsel. Dkt. # 10 at
2-3. Similarly, in his notice of state post-conviction filing, petitioner indicates that he seeks postconviction relief on claims of ineffective assistance of appellate counsel rather than on the
underlying, unexhausted claims he asserts in Grounds 2, 5 and 6. Dkt. # 12 at 1-2. Second, even
if exhaustion would not be a futile exercise, dismissing the entire petition without prejudice to
permit petitioner to exhaust his claims could prevent petitioner from timely refiling his habeas
petition. As respondent points out, petitioner filed the instant habeas petition on December 12,
2017, well before his one-year AEDPA deadline expired on March 21, 2018. See Dkt. # 11 at 1-2.
Because petitioner filed an application for state post-conviction relief on March 13, 2018, the
AEDPA deadline is now statutorily tolled. See Dkt. # 12; 28 U.S.C. § 2244(d)(2); Clark v.
Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only state petitions for post-conviction relief filed
within the one year allowed by AEDPA will toll the statute of limitations.”). While petitioner’s oneyear limitation period is currently tolled,3 should this Court dismiss the entire habeas petition
petitioner would have only 8 days after entry of the OCCA’s final decision on his post-conviction
appeal in which to refile a federal habeas petition asserting only exhausted claims. This tight
timeline also militates against dismissal. See Rhines, 544 U.S. at 275 (noting that “if a district court
dismisses a mixed petition close to the end of the 1-year period, the petitioner’s chances of
exhausting his claims in state court and refiling his petition in federal court before the limitations
period runs are slim”). For these reasons, the Court shall deny respondent’s motion to dismiss the
3
The Court takes judicial notice that the state district court denied petitioner’s application for
post-conviction relief on June 20, 2018, petitioner filed a notice of intent to appeal on July
2, 2018, and the OCCA issued a certificate of appeal in Case No. PC-2018-714 on July 26,
2018. See State v. James, Tulsa County District Court Case No. CF-2014-6469, available
at http://www.oscn.net/dockets, last visited July 27, 2018.
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petition for failure to exhaust (Dkt. # 7) and deny petitioner’s motion for leave to exhaust state
remedies (Dkt. # 9).
Instead, the Court will apply an anticipatory procedural bar4 to the unexhausted claims raised
in Grounds 2, 5 and 6. The Court will deny habeas relief on those claims, without reviewing them
on the merits, unless petitioner shows either “cause and prejudice” or a “fundamental miscarriage
of justice” to excuse his procedural default of those claims. Coleman, 501 U.S. at 750. To establish
cause the petitioner must “show that some objective factor external to the defense impeded . . .
efforts to comply with the state procedural rules. Murray v. Carrier, 477 U.S. 478, 488 (1986).
Examples of such external factors include discovery of new evidence, a change in the law,
interference by state officials, and constitutionally ineffective assistance of counsel. Id. However,
an ineffective assistance of counsel claim “generally must ‘be presented to the state courts as an
independent claim before it may be used to establish cause for a procedural default.’” Edwards v.
Carpenter, 529 U.S. 446, 452 (2000) (quoting Carrier, 477 U.S. at 489). In addition to cause,
petitioner must also show “‘actual prejudice’ resulting from the errors of which he complains.”
United States v. Frady, 456 U.S. 152, 168 (1982).
If petitioner cannot establish “cause and prejudice,” he can overcome the procedural default
of his unexhausted claims only by showing that a “fundamental miscarriage of justice” would result
if the Court fails to address those claims. Coleman, 501 U.S. at 750. To make this showing,
petitioner must present a credible claim of “actual innocence.” Schlup v. Delo, 513 U.S. 298, 324
4
“‘Anticipatory procedural bar’ occurs when the federal courts apply procedural bar to an
unexhausted claim that would be procedurally barred under state law if the petitioner
returned to state court to exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th
Cir. 2007) (quoting Moore v. Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002)).
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(1995). “To be credible, such a claim requires petitioner to support his allegations of constitutional
error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at trial.” Id. And
petitioner must “show that it is more likely than not that no reasonable juror would have convicted
him in light of the new evidence.” Id. at 327.
Within thirty (30) days of the entry of this order, petitioner may file a brief demonstrating
either “cause and prejudice” or a “fundamental miscarriage of justice” to excuse his procedural
default of the unexhausted claims raised in Grounds 2, 5 and 6 of his habeas petition. Respondent
may file a response within thirty (30) days of the filing of petitioner’s brief. Also, within thirty (30)
days of the entry of this order, respondent shall file a response to the habeas petition addressing the
exhausted claims raised in Grounds 1, 3 and 4. Petitioner may then file a reply within thirty (30)
days of the filing of respondent’s response.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.
Respondent’s motion to dismiss for failure to exhaust state remedies (Dkt. # 7) is denied.
2.
Petitioner’s motion for leave to exhaust state remedies (Dkt. # 9) is denied.
3.
Within thirty (30) days of the entry of this order, or by August 30, 2018, petitioner may file
a brief demonstrating either “cause and prejudice” or a “fundamental miscarriage of justice”
to excuse his procedural default of the claims raised in Grounds 2, 5 and 6 of the habeas
petition.
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4.
Respondent may file a response within thirty (30) days after the filing of petitioner’s brief.
5.
Within thirty (30) days of the entry of this order, or by August 30, 2018, respondent shall
file a response to the habeas petition addressing the claims raised in Grounds 1, 3 and 4.
6.
Petitioner may file a reply brief within thirty (30) days after the filing of respondent’s
response to the petition.
DATED this 30th day of July, 2018.
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